What can we help you with today?
Daniel Donald v David Booth
Daniel Donald v David Booth
XA61/25
Tuesday 5 May 2026
10:30 to 13:00 then 14:00 until conclusion
First division
[1] The appellant and the respondent are property developers. In 2013 the respondent was sequestrated, and title to his two properties, Caldonia and Northlasts, was held by his trustee in sequestration.
[2] The respondent negotiated with the trustee to purchase Northlasts for £220,000. In September 2019, the respondent was introduced to the appellant. After a series of meetings the parties agreed that the appellant would fund the purchase of Caldonia for the price of £930,000.
[3] It was found by the sheriff on hearing evidence that the parties had also agreed on the following: the appellant would secure planning permission for a housing development on Caldonia; that the respondent and the appellant would set up a limited company named Caldonia Developments Ltd, to which they would have an equal shareholding; that Caldonia Developments Ltd was to hold the title to Caldonia; and that the associated costs of the purchase would be paid by the appellant, including Land and Building Transaction Tax (LBTT).
[4] The respondent secured a loan from Barclays Bank of £220,000 to cover the price of Northlasts. The trustee had agreed to relinquish his interest in both properties on the transfer of £1,150,000 (£220,000 for Northlasts and £930,000 for Caldonia) and the title would be held by the respondent. A deadline of 6 November 2020 was set for the transaction to take place.
[5] A meeting was held on 30 October 2020. The appellant suggested that the title to Caldonia be taken directly from the trustee to Caldonia Developments Ltd (omitting the respondent). The trustee refused this proposal. Consequently, title first required to vest in the respondent. It was agreed between the parties that title would then be transferred to Caldonia Developments Ltd.
[6] The respondent agreed to grant a standard security in favour of the appellant for the purchase price of £930,000. The standard security was to protect the appellant whilst title was vested in the respondent. It was suggested that the standard security did not require to be registered on the basis that the title would almost immediately be transferred to Caldonia Developments Ltd. The respondent agreed to grant the standard security. This was an oral agreement between the parties.
[7] There was a delay on the receipt of the loan funds from Barclays Bank for the purchase of Northlands. The appellant agreed to provide a further £220,000 to enable the respondent to settle in full with the trustee. This was a loan repayable upon the release of funds by Barclays Bank in respect of Northlasts.
[8] The respondent’s solicitor prepared a standard security for £1,150,000 by the respondent in favour of the appellant over Caldonia. The standard security was signed on 6 November 2020 securing the increased sum of £1,150,000. The standard security narrated that the respondent would repay the money to the appellant when called upon to do so. The standard security contained a clause consenting to registration. The standard security was registered.
[9] The respondent signed a disposition by him in favour of Caldonia Developments Ltd and delivered the same to the appellant. By this time the sum of £220,000 had been repaid to the appellant by the respondent. The appellant refused to settle the LBTT due on the transaction; to register the disposition; and to grant a discharge of the standard security. The appellant called up the standard security, prompting the respondent to raise the present proceedings.
[10] The above represents the finding in facts made by the sheriff at first instance. The sheriff held that the parties had reached an agreement that title to Caldonia was to be held by Caldonia Developments Ltd. Accordingly, he considered the appellant to have an obligation to grant a discharge of the standard security granted by the respondent once the disposition in favour of Caldonia Developments Ltd had been registered. He also found that the appellant’s refusal to pay the LBTT; the refusal to register the disposition in favour of Caldonia Developments Ltd; and the calling up of the standard security represented an illegitimate attempt to withdraw from the agreement between the parties for the acquisition and development of Caldonia.
[11] The appellant appealed to the Sheriff Appeal Court, who dismissed the appeal and adhered to the Sheriff’s interlocutor. The appellant now, with leave of the court, appeals to the Inner House on six grounds. First, that effect ought to be given to the terms of the standard security only; second, that the agreement sought to vary a real right and so required to be in writing and could not rely on personal bar provisions of the Requirements of Writing (Scotland) Act 1995; third, that there was no legally binding agreement between the parties as to their joint venture; fourth, that the personal bar provision in the Requirements of Writing (Scotland) Act were not engaged; fifth, that the sheriff’s finding that the standard security was to be discharged was an implied term does not meet the established test; sixth, that the sheriff did not consider relevant evidence given by the respondent’s solicitor.
[12] The respondent argues that the parties’ oral agreement was capable of regulating the terms of the standard security; that the agreement between the parties did not affect a real right, it was an agreement between the parties and so was subject to the personal bar provisions in the 1995 Act; that the parties had created a legally binding agreement by their words and conduct; that the personal bar provisions of the 1995 Act were engaged; that the finding in fact that an implied term existed could not be interfered with on the basis that it was ‘plainly wrong’; and that the sheriff considered the evidence of the respondent’s solicitor in so far as it was relevant.
The First Division will hear this case at 10.30 am on 5 May 2026.